38A Section 38 contribution notice: meaning of “material detriment test”
(1) For the purposes of section 38 the material detriment test is met in relation to an act or failure if the Regulator is of the opinion that the act or failure has detrimentally affected in a material way the likelihood of accrued scheme benefits being received (whether the benefits are to be received as benefits under the scheme or otherwise).
(2) In this section any reference to accrued scheme benefits being received is a reference to benefits the rights to which have accrued by the relevant time being received by, or in respect of, the persons who were members of the scheme before that time.
(3) In this section “the relevant time” means—
(a) in the case of an act, the time of the act, or
(b) in the case of a failure—
(i) the time when the failure occurred, or
(ii) where the failure continued for a period of time, the time which the Regulator determines and which falls within that period;
and, in the case of acts or failures to act forming part of a series, any reference in this subsection to an act or failure is a reference to the last of the acts or failures in that series.
(4) In deciding for the purposes of section 38 whether the material detriment test is met in relation to an act or failure, the Regulator must have regard to such matters as it considers relevant, including (where relevant)—
(a) the value of the assets or liabilities of the scheme or of any relevant transferee scheme,
(b) the effect of the act or failure on the value of those assets or liabilities,
(c) the scheme obligations of any person,
(d) the effect of the act or failure on any of those obligations (including whether the act or failure causes the country or territory in which any of those obligations would fall to be enforced to be different),
(e) the extent to which any person is likely to be able to discharge any scheme obligation in any circumstances (including in the event of insolvency or bankruptcy),
(f) the extent to which the act or failure has affected, or might affect, the extent to which any person is likely to be able to do as mentioned in paragraph (e), and
(g) such other matters as may be prescribed.
(5) In subsection (4) “scheme obligation” means a liability or other obligation (including one that is contingent or otherwise might fall due) to make a payment, or transfer an asset, to—
(a) the scheme, or
(b) any relevant transferee scheme in respect of any persons who were members of the scheme before the relevant time.
(6) In this section—
(a) “relevant transferee scheme” means any work-based pension scheme to which any accrued rights to benefits under the scheme are transferred;
(b) any reference to the assets or liabilities of any relevant transferee scheme is a reference to those assets or liabilities so far as relating to persons who were members of the scheme before the relevant time.
(7) For the purposes of subsection (6)(a) the reference to the transfer of accrued rights of members of a pension scheme to another pension scheme includes a reference to the extinguishing of those accrued rights in consequence of the obligation to make a payment, or transfer an asset, to that other scheme.
(8) In this section—
(a) “work-based pension scheme” has the meaning given by section 5(3);
(b) any reference to rights which have accrued is to be read in accordance with section 67A(6) and (7) of the Pensions Act 1995 (reading any reference in those subsections to a subsisting right as a reference to a right which has accrued).
(9) In deciding for the purposes of this section whether an act or failure has detrimentally affected in a material way the likelihood of accrued scheme benefits being received, the following provisions of this Act are to be disregarded—
(a) Chapter 3 of Part 2 (the Board of the Pension Protection Fund: pension protection), and
(b) section 286 (the financial assistance scheme for members of certain pension schemes).
(10) Regulations may amend any provision of subsections (4) to (8).
38B Section 38 contribution notice issued by reference to material detriment test: defence
(1) This section applies where—
(a) a warning notice is given to any person (“P”) in respect of a contribution notice under section 38, and
(b) the contribution notice under consideration would be issued wholly or partly by reference to the Regulator's opinion that the material detriment test is met in relation to an act or deliberate failure to act to which P was a party.
(2) If the Regulator is satisfied that P has shown that—
(a) conditions A and C are met, and
(b) where applicable, condition B is met,
the Regulator must not issue the contribution notice by reference to its being of the opinion mentioned in subsection (1)(b).
(3) Condition A is that, before becoming a party to the act or failure, P gave due consideration to the extent to which the act or failure might detrimentally affect in a material way the likelihood of accrued scheme benefits being received.
(4) Condition B is that, in any case where as a result of that consideration P considered that the act or failure might have such an effect, P took all reasonable steps to eliminate or minimise the potential detrimental effects that the act or failure might have on the likelihood of accrued scheme benefits being received.
(5) Condition C is that, having regard to all relevant circumstances prevailing at the relevant time, it was reasonable for P to conclude that the act or failure would not detrimentally affect in a material way the likelihood of accrued scheme benefits being received.
(6) P is to be regarded as giving the consideration mentioned in condition A only if P has made the enquiries, and done the other acts, that a reasonably diligent person would have made or done in the circumstances.
(7) For the purposes of condition C—
(a) “the relevant time” means the time at which the act occurred or the failure to act first occurred;
(b) the reference to the circumstances mentioned in that condition is a reference to those circumstances of which P was aware, or ought reasonably to have been aware, at that time (including acts or failures to act which have occurred before that time and P's expectation at that time of other acts or failures to act occurring).
(8) In the case of acts or failures to act forming part of a series, P is to be regarded as having shown the matters mentioned in subsection (2) if P shows in the case of each of the acts or failures in the series that—
(a) conditions A and C are met, and (where applicable) condition B is met, in relation to the act or failure, or
(b) the act or failure was one of a number of acts or failures (a “group” of acts or failures) selected by P in relation to which the following matters are shown.
(9) The matters to be shown are that—
(a) before becoming a party to the first of the acts or failures in the group, condition A is met in relation to the effect of the acts or failures in the group taken together,
(b) condition B is (where applicable) met in relation to that effect, and
(c) condition C is then met in relation to each of the acts or failures in the group (determined at the time at which each act or failure concerned occurred or first occurred).
(10) If at any time P considers that condition C will not be met in relation to any particular act or failure in the group—
(a) the previous acts or failures in the group are to be regarded as a separate group for the purposes of subsection (8), and
(b) P may then select another group consisting of the particular act or failure concerned, and any subsequent act or failure, in relation to which P shows the matters mentioned in subsection (9).
Nothing in paragraph (b) is to be read as preventing P from showing the matters mentioned in subsection (8)(a).
(11) If—
(a) P is unable to show in the case of each of the acts or failures in the series that the matters set out in subsection (8)(a) or (b) are met, but
(b) does show in the case of some of them that those matters are met,
the acts or failures within paragraph (b) are not to count for the purposes of section 38A as acts or failures to act in the series.
(12) In this section—
(a) “a warning notice” means a notice given as mentioned in section 96(2)(a);
(b) a reference to a party to an act or failure to act includes a reference to a person who knowingly assists in the act or failure;
(c) any reference to the accrued scheme benefits being received has the same meaning as in section 38A;
and subsection (9) of section 38A applies for the purposes of conditions A to C as it applies for the purposes of that section.
(13) Regulations may amend this section.
38C Section 38 contribution notice: meaning of “employer insolvency test”
(1) For the purposes of section 38 the employer insolvency test is met in relation to an act or failure to act if the Regulator is of the opinion that—
(a) immediately after the relevant time, the value of the assets of the scheme was less than the amount of the liabilities of the scheme, and
(b) if a debt under section 75(4) of the Pensions Act 1995 (deficiencies in scheme assets: employer insolvency etc) had fallen due from the employer to the scheme immediately after the relevant time, the act or failure would have materially reduced the amount of the debt likely to be recovered by the scheme.
(2) For the purposes of subsection (1)—
(a) the value of the assets of the scheme immediately after the relevant time is the value which the Regulator estimates to be their value,
(b) the amount of the liabilities of the scheme immediately after the relevant time is the amount which the Regulator estimates to be the amount of those liabilities, and
(c) the amount of the debt is the amount which the Regulator estimates to be the amount of the debt under section 75(4) of the Pensions Act 1995 that would have fallen due immediately after the relevant time.
(3) When estimating the value and the amounts referred to in subsection (2), the Regulator must take into account how assets and liabilities, and their value or amount, are determined and calculated for the purposes of section 75(4) of the Pensions Act 1995.
(4) When estimating—
(a) the value of the assets of the scheme immediately after the relevant time, and
(b) the amount of the debt under section 75(4) of the Pensions Act 1995 falling due immediately after the relevant time,
the Regulator must disregard the amount of any debt due immediately after the relevant time from the employer under section 75 of the Pensions Act 1995.
(5) In this section “the relevant time” means—
(a) in the case of an act, the time of the act, or
(b) in the case of a failure to act—
(i) the time when the failure occurred, or
(ii) where the failure continued for a period of time, the time which the Regulator determines and which falls within that period;
and, in the case of acts or failures to act forming part of a series, any reference in this subsection to an act or failure to act is a reference to the last of the acts or failures in that series.
38D Section 38 contribution notice issued by reference to employer insolvency test: defence
(1) This section applies where—
(a) a warning notice is given to any person (“P”) in respect of a contribution notice under section 38, and
(b) the contribution notice under consideration would be issued wholly or partly by reference to the Regulator's opinion that the employer insolvency test is met in relation to an act or deliberate failure to act to which P was a party.
(2) If the Regulator is satisfied that P has shown that—
(a) conditions A and C are met, and
(b) where applicable, condition B is met,
the Regulator must not issue the contribution notice by reference to its being of the opinion mentioned in subsection (1)(b).
(3) If the Regulator is satisfied that P or another person has shown that condition D is met, the Regulator must not issue the contribution notice by reference to its being of the opinion mentioned in subsection (1)(b).
(4) Condition A is that, before becoming a party to the act or failure, P gave due consideration to the extent to which, if a debt under section 75(4) of the Pensions Act 1995 were to fall due from the employer to the scheme—
(a) immediately after the act or failure, or
(b) where the failure might continue for a period of time, at any time within that period,
the act or failure might materially reduce the amount of the debt likely to be recovered by the scheme.
(5) Condition B is that, in any case where as a result of that consideration P considered that the act or failure might have such an effect, P took all reasonable steps to eliminate or minimise the potential for the act or failure to have such an effect.
(6) Condition C is that, having regard to all relevant circumstances prevailing at the time of the act or at the time when the failure to act first occurred, it was reasonable for P to conclude that, if a debt under section 75(4) of the Pensions Act 1995 were to fall due from the employer to the scheme—
(a) immediately after the act or failure, or
(b) where the failure might continue for a period of time, at any time within that period,
the act or failure would not materially reduce the amount of the debt likely to be recovered by the scheme.
(7) Condition D is that, immediately after the relevant time, the value of the assets of the scheme equalled or was more than the amount at that time of the liabilities of the scheme.
(8) P is to be regarded as giving the consideration mentioned in condition A only if P has made the enquiries, and done the other acts, that a reasonably diligent person would have made or done in the circumstances.
(9) For the purposes of condition C the reference to the circumstances mentioned in that condition is a reference to those circumstances of which P was aware, or ought reasonably to have been aware, at the time of the act or the time when the failure to act first occurred (including acts or failures to act which have occurred before that time and P's expectation at that time of other acts or failures to act occurring).
(10) For the purposes of conditions A, C and D the amount of any debt due at the time in question from the employer under section 75 of the Pensions Act 1995 is to be disregarded.
(11) In the case of acts or failures to act forming part of a series, P is to be regarded as having shown the matters mentioned in subsection (2) if P shows in the case of each of the acts or failures in the series that—
(a) conditions A and C are met, and (where applicable) condition B is met, in relation to the act or failure, or
(b) the act or failure was one of a number of acts or failures (a “group” of acts or failures) selected by P in relation to which the following matters are shown.
(12) The matters to be shown are that—
(a) before becoming a party to the first of the acts or failures in the group, condition A is met in relation to the effect of the acts or failures in the group taken together,
(b) condition B is (where applicable) met in relation to that effect, and
(c) condition C is then met in relation to each of the acts or failures in the group (determined at the time at which each act or failure concerned occurred or first occurred).
(13) If at any time P considers that condition C will not be met in relation to any particular act or failure in the group—
(a) the previous acts or failures in the group are to be regarded as a separate group for the purposes of subsection (11), and
(b) P may then select another group consisting of the particular act or failure concerned, and any subsequent act or failure, in relation to which P shows the matters mentioned in subsection (12).
Nothing in paragraph (b) is to be read as preventing P from showing the matters mentioned in subsection (11)(a).
(14) If—
(a) P is unable to show in the case of each of the acts or failures in the series that the matters set out in subsection (11)(a) or (b) are met, but
(b) does show in the case of some of them that those matters are met,
the acts or failures within paragraph (b) are not to count for the purposes of section 38C as acts or failures to act in the series.
(15) In this section—
(a) “the relevant time” has the meaning given by section 38C;
(b) “a warning notice” means a notice given as mentioned in section 96(2)(a);
(c) a reference to a party to an act or failure to act includes a reference to a person who knowingly assists in the act or failure.
38E Section 38 contribution notice: meaning of “employer resources test”
(1) For the purposes of section 38 the employer resources test is met in relation to an act or failure to act if the Regulator is of the opinion that—
(a) the act or failure reduced the value of the resources of the employer, and
(b) that reduction was a material reduction relative to the estimated section 75 debt in relation to the scheme.
(2) For the purposes of this section—
(a) what constitutes the resources of the employer is to be determined in accordance with regulations;
(b) the value of the resources of the employer is to be determined, calculated and verified in a prescribed manner.
(3) In this section the “estimated section 75 debt” means the amount which the Regulator estimates to be the amount of the debt which would become due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets) if—
(a) section 75(2) applied, and
(b) the time designated by the trustees or managers of the scheme for the purposes of section 75(2) were the relevant time.
(4) When calculating the estimated section 75 debt under subsection (3), the amount of any debt due at the relevant time from the employer under section 75 of the Pensions Act 1995 is to be disregarded.
(5) In this section “the relevant time” means—
(a) in a case where the act or failure to act forms part of a series of acts or failures to act, the time immediately before the first of the acts occurred or the first of the failures to act first occurred;
(b) in any other case, the time immediately before the act occurred or the failure to act first occurred.
38F Section 38 contribution notice issued by reference to employer resources test: defence
(1) This section applies where—
(a) a warning notice is given to any person (“P”) in respect of a contribution notice under section 38, and
(b) the contribution notice under consideration would be issued wholly or partly by reference to the Regulator's opinion that the employer resources test is met in relation to an act or deliberate failure to act to which P was a party.
(2) If the Regulator is satisfied that P has shown that—
(a) conditions A and C are met, and
(b) where applicable, condition B is met,
the Regulator must not issue the contribution notice by reference to its being of the opinion mentioned in subsection (1)(b).
(3) Condition A is that, before becoming a party to the act or failure, P gave due consideration to the extent to which the act or failure might reduce the value of the resources of the employer relative to the estimated section 75 debt in relation to the scheme.
(4) Condition B is that, in any case where as a result of that consideration P considered that the act or failure might have such an effect, P took all reasonable steps to eliminate or minimise the potential for the act or failure to have such an effect.
(5) Condition C is that, having regard to all relevant circumstances prevailing at the time of the act or at the time when the failure to act first occurred, it was reasonable for P to conclude that the act or failure would not bring about a reduction in the value of the resources of the employer that would be a material reduction relative to the estimated section 75 debt in relation to the scheme.
(6) P is to be regarded as giving the consideration mentioned in condition A only if P has made the enquiries, and done the other acts, that a reasonably diligent person would have made or done in the circumstances.
(7) For the purposes of condition C the reference to the circumstances mentioned in that condition is a reference to those circumstances of which P was aware, or ought reasonably to have been aware, at the time of the act or the time when the failure to act first occurred (including acts or failures to act which have occurred before that time and P's expectation at that time of other acts or failures to act occurring).
(8) For the purposes of conditions A and C—
(a) the “estimated section 75 debt” means the amount which is a reasonable estimate of the amount of the debt which would become due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets) if—
(i) section 75(2) applied, and
(ii) the time designated by the trustees or managers of the scheme for the purposes of section 75(2) were the time immediately before the act occurred or the failure to act first occurred;
(b) the amount of any debt due at the time in question from the employer under section 75 of the Pensions Act 1995 is to be disregarded.
(9) In the case of acts or failures to act forming part of a series, P is to be regarded as having shown the matters mentioned in subsection (2) if P shows in the case of each of the acts or failures in the series that—
(a) conditions A and C are met, and (where applicable) condition B is met, in relation to the act or failure, or
(b) the act or failure was one of a number of acts or failures (a “group” of acts or failures) selected by P in relation to which the following matters are shown.
(10) The matters to be shown are that—
(a) before becoming a party to the first of the acts or failures in the group, condition A is met in relation to the effect of the acts or failures in the group taken together,
(b) condition B is (where applicable) met in relation to that effect, and
(c) condition C is then met in relation to each of the acts or failures in the group (determined at the time at which each act or failure concerned occurred or first occurred).
(11) If at any time P considers that condition C will not be met in relation to any particular act or failure in the group—
(a) the previous acts or failures in the group are to be regarded as a separate group for the purposes of subsection (9), and
(b) P may then select another group consisting of the particular act or failure concerned, and any subsequent act or failure, in relation to which P shows the matters mentioned in subsection (10).
Nothing in paragraph (b) is to be read as preventing P from showing the matters mentioned in subsection (9)(a).
(12) If—
(a) P is unable to show in the case of each of the acts or failures in the series that the matters set out in subsection (9)(a) or (b) are met, but
(b) does show in the case of some of them that those matters are met,
the acts or failures within paragraph (b) are not to count for the purposes of section 38E as acts or failures to act in the series.
(13) In this section—
(a) section 38E(2) (the resources of the employer and their value) has effect for the purpose of this section as it has effect for the purposes of section 38E;
(b) “a warning notice” means a notice given as mentioned in section 96(2)(a);
(c) a reference to a party to an act or failure to act includes a reference to a person who knowingly assists in the act or failure.
39 The sum specified in a section 38 contribution notice
(1) The sum specified by the Regulator in a contribution notice under section 38 may be either the whole or a specified part of the shortfall sum in relation to the scheme.
(2) Subject to subsection (3), the shortfall sum in relation to a scheme is—
(a) in a case where, at the relevant time, a debt was due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (c. 26) (“the 1995 Act”) (deficiencies in the scheme assets), the amount which the Regulator estimates to be the amount of that debt at that time, and
(b) in a case where, at the relevant time, no such debt was due, the amount which the Regulator estimates to be the amount of the debt under section 75 of the 1995 Act which would become due if—
(i) subsection (2) of that section applied, and
(ii) the time designated by the trustees or managers of the scheme for the purposes of that subsection were the relevant time.
(3) Where the Regulator is satisfied that the act or failure to act falling within section 38(5) resulted—
(a) in a case falling within paragraph (a) of subsection (2), in the amount of the debt which became due under section 75 of the 1995 Act being less than it would otherwise have been, or
(b) in a case falling within paragraph (b) of subsection (2), in the amount of any such debt calculated for the purposes of that paragraph being less than it would otherwise have been,
the Regulator may increase the amounts calculated under subsection (2)(a) or (b) by such amount as the Regulator considers appropriate.
(4) For the purposes of this section “the relevant time” means the end of the scheme year which ended most recently before the day on which the Regulator gives a determination notice under section 96(2)(d) in respect of an intended contribution notice under section 38.
(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) For the purposes of this section—
(a) references to a debt due under section 75 of the 1995 Act include a contingent debt under that section, and
(b) references to the amount of such a debt include the amount of such a contingent debt.
39A Section 38 contribution notice: transfer of members of the scheme
(1) This section applies where—
(a) the Regulator is of the opinion that in relation to a scheme (“the initial scheme”) in relation to which section 38 applies—
(i) an act or failure to act falling within subsection (5) of that section has occurred (or first occurred) at any time, and
(ii) the other conditions in that section for issuing a contribution notice are met in relation to the initial scheme (or, but for any transfer falling within paragraph (b), would be met), and
(b) the accrued rights of at least two persons who were members of the initial scheme are transferred at that or any subsequent time to one or more work-based pension schemes (whether by virtue of the act or otherwise).
(2) The Regulator may issue a contribution notice under section 38 in relation to any transferee scheme (and, accordingly, any reference in section 40 or 41 to the scheme is to the transferee scheme).
(3) In the case of any contribution notice issued by virtue of subsection (2) to any transferee scheme which is not within subsection (5)(a) or (b), section 39 has effect as if any reference in that section to the scheme were a reference to whichever of—
(a) the initial scheme, and
(b) the transferee scheme,
the Regulator determines to be more appropriate in the circumstances.
(4) In any case where section 39 has effect in relation to the transferee scheme by virtue of subsection (3), any reference in that section to a debt under section 75 of the 1995 Act is a reference to so much of that debt as, in the Regulator's opinion, is attributable to those members of the transferee scheme who were members of the initial scheme.
(5) In the case of any contribution notice issued by virtue of subsection (2) to any transferee scheme which is—
(a) a scheme to which section 75 of the 1995 Act does not apply, or
(b) a scheme to which that section does apply in a case where the liabilities of the scheme that would be taken into account for the purposes of that section do not relate to the members of the initial scheme,
the sum specified by the Regulator in the notice is determined in accordance with regulations (and not in accordance with section 39).
(6) The Regulator may also issue a direction to the trustees or managers of any transferee scheme requiring them to take specified steps to secure that the sum payable under the notice is applied for the benefit of the members of the transferee scheme who were members of the initial scheme.
(7) If the trustees or managers fail to comply with a direction issued to them under subsection (6), section 10 of the 1995 Act (civil penalties) applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(1) In section 39A a “transferee scheme”, in relation to any time, means any work-based pension scheme—
(a) to which the accrued rights of at least two persons who were members of the initial scheme have been transferred, and
(b) of which any of those persons are members at that time.
(2) For the purposes of section 39A(1) and subsection (1) above it does not matter whether any rights are transferred to a work-based pension scheme directly from the initial scheme or following one or more other transfers to other work-based pension schemes.
(3) For the purposes of section 39A and this section references to the transfer of accrued rights of members of a pension scheme to another pension scheme include references to the extinguishing of those accrued rights in consequence of the obligation to make a payment, or transfer an asset, to that other scheme.
(4) In section 39A and this section—
(a) “the 1995 Act” means the Pensions Act 1995;
(b) “work-based pension scheme” has the meaning given by section 5(3);
(c) any reference to rights which have accrued is to be read in accordance with section 67A(6) and (7) of the 1995 Act (reading any reference in those subsections to a subsisting right as a reference to a right which has accrued).
(5) Section 39A applies even if the initial scheme—
(a) is wound up as a result of any transfer falling within subsection (1)(b) of that section, or
(b) otherwise ceases to exist at the time of the transfer or at any subsequent time.
(6) Accordingly, in any such case, in subsection (1) of that section—
(a) the reference to a scheme to which section 38 applies is a reference to a scheme which was such a scheme before the transfer;
(b) the reference to any conditions in section 38 being met is a reference to any conditions in that section that, but for the transfer, would have been met in relation to the scheme.
(7) Nothing in section 39A or this section is to be read as preventing the Regulator from issuing a contribution notice in relation to the initial scheme.
(8) Regulations may make provision applying, with or without modifications, any provision made by or under section 39A or this section in relation to any scheme or other arrangement in any case where the accrued rights of persons who were members of the initial scheme are transferred or extinguished directly or indirectly in consequence of or otherwise in connection with—
(a) the making of any payment at any time to or for the benefit of the scheme or other arrangement,
(b) the transfer of any asset at any time to or for the benefit of the scheme or other arrangement,
(c) the discharge (wholly or partly) at any time of any liability incurred by or on behalf of the scheme or other arrangement, or
(d) the incurring at any time of any obligation to do any act falling within paragraph (a) to (c).
(9) Any reference in subsection (8)(a) to (d) to the doing of an act of any description at any time in relation to the scheme or other arrangement includes a reference to the doing of an act of that description at any previous time in relation to any other scheme or other arrangement.
(10) Regulations under subsection (8) may—
(a) make provision having effect in relation to any case where rights are transferred or extinguished on or after the date on which the Secretary of State publishes a statement of the intention to make the regulations; and
(b) without prejudice to section 315(5), make consequential provision applying with modifications any provision of this Act which relates to contribution notices under section 38.
40 Content and effect of a section 38 contribution notice
(1) This section applies where a contribution notice is issued to a person under section 38.
(2) The contribution notice must—
(a) contain a statement of the matters which it is asserted constitute the act or failure to act which falls within subsection (5) of section 38,
(b) specify the sum which the person is stated to be under a liability to pay, and
(c) identify any other persons to whom contribution notices have been or are issued as a result of the act or failure to act in question and the sums specified in each of those notices.
(2A) Without prejudice to subsections (3) and (7), the contribution notice must also specify a date for the purposes of sections 42A(2) and 42B(2) (sanctions for failure to comply with a contribution notice).
(3) Where the contribution notice states that the person is under a liability to pay the sum specified in the notice to the trustees or managers of the scheme, the sum is to be treated as a debt due from the person to the trustees or managers of the scheme.
(4) In such a case, the Regulator may, on behalf of the trustees or managers of the scheme, exercise such powers as the trustees or managers have to recover the debt.
(5) But during any assessment period (within the meaning of section 132) in relation to the scheme, the rights and powers of the trustees or managers of the scheme in relation to any debt due to them by virtue of a contribution notice are exercisable by the Board of the Pension Protection Fund to the exclusion of the trustees or managers and the Regulator.
(6) Where, by virtue of subsection (5), any amount is paid to the Board in respect of a debt due by virtue of a contribution notice, the Board must pay the amount to the trustees or managers of the scheme.
(7) Where the contribution notice states that the person is under a liability to pay the sum specified in the notice to the Board, the sum is to be treated as a debt due from the person to the Board.
(8) Where the contribution notice so specifies, the person to whom the notice is issued (“P”) is to be treated as jointly and severally liable for the debt with any persons specified in the notice who are persons to whom corresponding contribution notices are issued.
(9) For the purposes of subsection (8), a corresponding contribution notice is a notice which—
(a) is issued as a result of the same act or failure to act falling within subsection (5) of section 38 as the act or failure as a result of which P’s contribution notice is issued,
(b) specifies the same sum as is specified in P’s contribution notice,
(ba) specifies the same date for the purposes of sections 42A(2) and 42B(2) as is specified in P's contribution notice, and
(c) specifies that the person to whom the contribution notice is issued is jointly and severally liable with P, or with P and other persons, for the debt in respect of that sum.
(10) A debt due by virtue of a contribution notice is not to be taken into account for the purposes of section 75(2) and (4) of the Pensions Act 1995 (c. 26) (deficiencies in the scheme assets) when ascertaining the amount or value of the assets or liabilities of a scheme.
41 Section 38 contribution notice: relationship with employer debt
(1) This section applies where a contribution notice is issued to a person (“P”) under section 38 and condition A or B is met.
(2) Condition A is met if, at the time at which the contribution notice is issued, there is a debt due under section 75 of the Pensions Act 1995 (“the 1995 Act”) (deficiencies in the scheme assets) from the employer—
(a) to the trustees or managers of the scheme, or
(b) where the Board of the Pension Protection Fund has assumed responsibility for the scheme in accordance with Chapter 3 of Part 2 (pension protection), to the Board.
(3) Condition B is met if, after the contribution notice is issued but before the whole of the debt due by virtue of the notice is recovered, a debt becomes due from the employer to the trustees or managers of the scheme under section 75 of the 1995 Act.
(4) The Regulator may issue a direction to the trustees or managers of the scheme not to take any or any further steps to recover the debt due to them under section 75 of the 1995 Act pending the recovery of all or a specified part of the debt due to them by virtue of the contribution notice.
(5) If the trustees or managers fail to comply with a direction issued to them under subsection (4), section 10 of the 1995 Act (civil penalties) applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(6) Any sums paid—
(a) to the trustees or managers of the scheme in respect of any debt due to them by virtue of the contribution notice, or
(b) to the Board in respect of any debt due to it by virtue of the contribution notice,
are to be treated as reducing the amount of the debt due to the trustees or managers or, as the case may be, to the Board under section 75 of the 1995 Act.
(7) Where a sum is paid to the trustees or managers of the scheme or, as the case may be, to the Board in respect of the debt due under section 75 of the 1995 Act, P may make an application under this subsection to the Regulator for a reduction in the amount of the sum specified in P’s contribution notice.
(8) An application under subsection (7) must be made as soon as reasonably practicable after the sum is paid to the trustees or managers or, as the case may be, to the Board in respect of the debt due under section 75 of the 1995 Act.
(8A) An application under subsection (7) may not be made after—
(a) the date specified under section 40(2A) for the purposes of sections 42A(2) and 42B(2) (sanctions for failure to comply with a contribution notice), or
(b) if a different date has effect instead of that date (see subsections (10A) and (11B)), that different date.
(9) Where such an application is made to the Regulator, the Regulator may, if it is of the opinion that it is appropriate to do so—
(a) reduce the amount of the sum specified in P’s contribution notice by an amount which it considers reasonable, and
(b) issue a revised contribution notice specifying the revised sum.
(10) For the purposes of subsection (9), the Regulator must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters—
(a) the amount paid in respect of the debt due under section 75 of the 1995 Act since the contribution notice was issued,
(b) any amounts paid in respect of the debt due by virtue of that contribution notice,
(c) whether contribution notices have been issued to other persons as a result of the same act or failure to act falling within subsection (5) of section 38 as the act or failure as a result of which P’s contribution notice was issued,
(d) where such contribution notices have been issued, the sums specified in each of those notices and any amounts paid in respect of the debt due by virtue of those notices,
(e) whether P’s contribution notice specifies that P is jointly and severally liable for the debt with other persons, and
(f) such other matters as may be prescribed.
(10A) Where an application under subsection (7) is made to the Regulator, the Regulator may, if it is of the opinion that it is appropriate to do so—
(a) change the date that has effect for the purposes of sections 42A(2) and 42B(2) (whether specified in the contribution notice or an earlier revised contribution notice), and
(b) specify the revised date in the revised contribution notice issued under subsection (9)(b) or, if the Regulator does not issue a revised contribution notice under subsection (9)(b), issue a revised contribution notice specifying the revised date.
(11) Where—
(a) P’s contribution notice specifies that P is jointly and severally liable for the debt with other persons, and
(b) a revised contribution notice is issued to P under subsection (9) specifying a revised sum,
the Regulator must also issue revised contribution notices to those other persons specifying the revised sum and their joint and several liability with P for the debt in respect of that sum.
(11A) Subsection (11B) applies where—
(a) P's contribution notice specifies that P is jointly and severally liable for the debt with other persons, and
(b) the Regulator issues a revised contribution notice to P under subsection (9)(b) or (10A)(b) specifying a revised date for the purposes of sections 42A(2) and 42B(2).
(11B) Where this subsection applies, the Regulator must—
(a) change the date that has effect for the purposes of sections 42A(2) and 42B(2) in the case of the contribution notices or revised contribution notices issued in respect of the debt to those other persons, and
(b) specify the revised date in the revised contribution notices issued to those other persons under subsection (11) or, if the Regulator does not issue revised contribution notices under subsection (11), issue revised contribution notices to those other persons specifying the revised date.
(12) For the purposes of this section—
(a) references to a debt due under section 75 of the 1995 Act include a contingent debt under that section, and
(b) references to the amount of such a debt include the amount of such a contingent debt.
(1) An application may be made to the Regulator under this section for the issue of a clearance statement within paragraph (a), (b) or (c) of subsection (2) in relation to circumstances described in the application.
(2) A clearance statement is a statement, made by the Regulator, that in its opinion in the circumstances described in the application—
(a) the applicant would not be, for the purposes of subsection (3)(a) of section 38, a party to an act or a deliberate failure to act falling within subsection (5)(a) of that section,
(b) it would not be reasonable to impose any liability on the applicant under a contribution notice issued under section 38, or
(c) such requirements of that section as may be prescribed would not be satisfied in relation to the applicant.
(3) Where an application is made under this section, the Regulator—
(a) may request further information from the applicant;
(b) may invite the applicant to amend the application to modify the circumstances described.
(4) Where an application is made under this section, the Regulator must as soon as reasonably practicable—
(a) determine whether to issue the clearance statement, and
(b) where it determines to do so, issue the statement.
(5) A clearance statement issued under this section binds the Regulator in relation to the exercise of the power to issue a contribution notice under section 38 to the applicant unless—
(a) the circumstances in relation to which the exercise of the power under that section arises are not the same as the circumstances described in the application, and
(b) the difference in those circumstances is material to the exercise of the power.
42A Offence of failing to comply with a section 38 contribution notice
(1) This section applies where a contribution notice is issued to a person under section 38.
(2) If the person, without reasonable excuse, fails to pay the debt due by virtue of the contribution notice to—
(a) the trustees or managers of the scheme, or
(b) the Board of the Pension Protection Fund (as the case may be),
before the date specified in the contribution notice for the purposes of this subsection (see section 40(2A)), the person is guilty of an offence.
(3) A person guilty of an offence under subsection (2) is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland, to a fine not exceeding level 5 on the standard scale.
(4) Proceedings for an offence under subsection (2) may not be instituted if an application under section 41(7) has been made—
(a) in relation to the contribution notice, or
(b) in relation to a contribution notice which is a corresponding contribution notice for the purposes of section 40(8),
and the application has not been determined, withdrawn or abandoned.
(5) Proceedings for an offence under subsection (2) may be instituted in England and Wales only—
(a) by the Regulator or the Secretary of State, or
(b) by or with the consent of the Director of Public Prosecutions.
42B Financial penalty for failure to comply with a section 38 contribution notice
(1) This section applies where a contribution notice is issued to a person under section 38.
(2) Section 88A (financial penalties) applies to the person if the person, without reasonable excuse, fails to pay the debt due by virtue of the contribution notice to—
(a) the trustees or managers of the scheme, or
(b) the Board of the Pension Protection Fund (as the case may be),
before the date specified in the contribution notice for the purposes of this subsection (see section 40(2A)).
(3) The Regulator may not issue a warning notice to the person in respect of the imposition of a penalty under section 88A as it applies by virtue of subsection (2) if an application under section 41(7) has been made—
(a) in relation to the contribution notice, or
(b) in relation to a contribution notice which is a corresponding contribution notice for the purposes of section 40(8),
and the application has not been determined, withdrawn or abandoned.
(4) In this section “warning notice” means a notice given as mentioned in section 96(2)(a).
(1) This section applies in relation to an occupational pension scheme other than—
(a) a money purchase scheme, or
(b) a prescribed scheme or a scheme of a prescribed description.
(2) The Regulator may issue a financial support direction under this section in relation to such a scheme if the Regulator is of the opinion that the employer in relation to the scheme—
(a) is a service company, or
(b) is insufficiently resourced,
at a time determined by the Regulator which falls within subsection (9) (“the relevant time”).
(3) A financial support direction in relation to a scheme is a direction which requires the person or persons to whom it is issued to secure—
(a) that financial support for the scheme is put in place within the period specified in the direction,
(b) that thereafter that financial support or other financial support remains in place while the scheme is in existence, and
(c) that the Regulator is notified in writing of prescribed events in respect of the financial support as soon as reasonably practicable after the event occurs.
(4) A financial support direction in relation to a scheme may be issued to one or more persons.
(5) But the Regulator may issue such a direction to a person only if—
(a) the person is at the relevant time a person falling within subsection (6), and
(b) the Regulator is of the opinion that it is reasonable to impose the requirements of the direction on that person.
(6) A person falls within this subsection if the person is—
(a) the employer in relation to the scheme,
(b) an individual who—
(i) is an associate of an individual who is the employer, but
(ii) is not an associate of that individual by reason only of being employed by him, or
(c) a person, other than an individual, who is connected with or an associate of the employer.
(7) The Regulator, when deciding for the purposes of subsection (5)(b) whether it is reasonable to impose the requirements of a financial support direction on a particular person, must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters—
(a) the relationship which the person has or has had with the employer (including, where the employer is a company within the meaning of subsection (11) of section 435 of the Insolvency Act 1986 (c. 45), whether the person has or has had control of the employer within the meaning of subsection (10) of that section),
(b) in the case of a person falling within subsection (6)(b) or (c), the value of any benefits received directly or indirectly by that person from the employer,
(c) any connection or involvement which the person has or has had with the scheme,
(d) the financial circumstances of the person, and
(e) such other matters as may be prescribed.
(8) A financial support direction must identify all the persons to whom the direction is issued.
(9) A time falls within this subsection if it is a time which falls within a prescribed period which ends with the giving of a warning notice in respect of the financial support direction in question.
(10) For the purposes of subsection (3), a scheme is in existence until it is wound up.
(11) No duty to which a person is subject is to be regarded as contravened merely because of any information or opinion contained in a notice given by virtue of subsection (3)(c).
This is subject to section 311 (protected items).
(12) In this section “a warning notice” means a notice given as mentioned in section 96(2)(a).
43A Financial support directions: transfer of members of the scheme
(1) This section applies where—
(a) the Regulator is of the opinion by reference to any time that the conditions in section 43 for issuing a financial support direction are met in relation to a scheme (“the initial scheme”) in relation to which that section applies (or, but for any transfer falling within paragraph (b), would be met), and
(b) the accrued rights of at least two persons who were members of the initial scheme are transferred at any subsequent time to one or more work-based pension schemes.
(2) The Regulator may issue a financial support direction under that section in relation to any transferee scheme (and, accordingly, any reference in section 45 or any of sections 47 to 50 to the scheme is to the transferee scheme).
(3) The Regulator may also issue a direction to the trustees or managers of any transferee scheme requiring them to take specified steps to secure that the financial support is put in place for the benefit of the members of the transferee scheme who were members of the initial scheme.
(4) If the trustees or managers fail to comply with a direction issued to them under subsection (3), section 10 of the 1995 Act (civil penalties) applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(1) In section 43A a “transferee scheme”, in relation to any time, means any work-based pension scheme—
(a) to which the accrued rights of at least two persons who were members of the initial scheme have been transferred, and
(b) of which any of those persons are members at that time.
(2) For the purposes of section 43A(1) and subsection (1) above it does not matter whether any rights are transferred to a work-based pension scheme directly from the initial scheme or following one or more other transfers to other work-based pension schemes.
(3) For the purposes of section 43A and this section references to the transfer of accrued rights of members of a pension scheme to another pension scheme include references to the extinguishing of those accrued rights in consequence of the obligation to make a payment, or transfer an asset, to that other scheme.
(4) In section 43A and this section—
(a) “the 1995 Act” means the Pensions Act 1995;
(b) “work-based pension scheme” has the meaning given by section 5(3);
(c) any reference to rights which have accrued is to be read in accordance with section 67A(6) and (7) of the 1995 Act (reading any reference in those subsections to a subsisting right as a reference to a right which has accrued).
(5) Section 43A applies even if the initial scheme—
(a) is wound up as a result of any transfer falling within subsection (1)(b) of that section, or
(b) otherwise ceases to exist at the time of the transfer or at any subsequent time.
(6) Accordingly, in any such case, in subsection (1) of that section—
(a) the reference to a scheme to which section 43 applies is a reference to a scheme which was such a scheme before the transfer;
(b) the reference to any conditions in section 43 being met is a reference to any conditions in that section that, but for the transfer, would have been met in relation to the scheme.
(7) Nothing in section 43A or this section is to be read as preventing the Regulator from issuing a financial support direction in relation to the initial scheme.
(8) Regulations may make provision applying, with or without modifications, any provision made by section 43A or this section in relation to any scheme or other arrangement in any case where the accrued rights of persons who were members of the initial scheme are transferred or extinguished directly or indirectly in consequence of or otherwise in connection with—
(a) the making of any payment at any time to or for the benefit of the scheme or other arrangement,
(b) the transfer of any asset at any time to or for the benefit of the scheme or other arrangement,
(c) the discharge (wholly or partly) at any time of any liability incurred by or on behalf of the scheme or other arrangement, or
(d) the incurring at any time of any obligation to do any act falling within paragraph (a) to (c).
(9) Any reference in subsection (8)(a) to (d) to the doing of an act of any description at any time in relation to the scheme or other arrangement includes a reference to the doing of an act of that description at any previous time in relation to any other scheme or other arrangement.
(10) Regulations under subsection (8) may—
(a) make provision having effect in relation to any case where rights are transferred or extinguished on or after the date on which the Secretary of State publishes a statement of the intention to make the regulations; and
(b) without prejudice to section 315(5), make consequential provision applying with modifications any provision of this Act which relates to financial support directions under section 43.
44 Meaning of “service company” and “insufficiently resourced”
(1) This section applies for the purposes of section 43 (financial support directions).
(2) An employer (“E”) is a “service company” at the relevant time if—
(a) E is a company as defined in section 1(1) of the Companies Act 2006,
(b) E is a member of a group of companies, and
(c) E’s turnover, as shown in the latest available individual accounts for E prepared in accordance with Part 15 of that Act, is solely or principally derived from amounts charged for the provision of the services of employees of E to other members of that group.
(3) The employer in relation to a scheme is insufficiently resourced at the relevant time if—
(a) at that time the value of the resources of the employer is less than the amount which is a prescribed percentage of the estimated section 75 debt in relation to the scheme, and
(b) condition A or B is met.
(3A) Condition A is met if—
(a) there is at that time a person who falls within section 43(6)(b) or (c), and
(b) the value at that time of that person's resources is not less than the relevant deficit, that is to say the amount which is the difference between—
(i) the value of the resources of the employer, and
(ii) the amount which is the prescribed percentage of the estimated section 75 debt.
(3B) Condition B is met if—
(a) there are at that time two or more persons who—
(i) fall within section 43(6)(b) or (c), and
(ii) are connected with, or associates of, each other, and
(b) the aggregate value at that time of the resources of the persons who fall within paragraph (a) (or any of them) is not less than the relevant deficit.
(4) For the purposes of subsections (3) to (3B) —
(a) what constitutes the resources of a person is to be determined in accordance with regulations, and
(b) the value of a person’s resources is to be determined, calculated and verified in a prescribed manner.
(5) In this section the “estimated section 75 debt”, in relation to a scheme, means the amount which the Regulator estimates to be the amount of the debt which would become due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (c. 26) (deficiencies in the scheme assets) if—
(a) subsection (2) of that section applied, and
(b) the time designated by the trustees or managers of the scheme for the purposes of that subsection were the relevant time.
(6) When calculating the estimated section 75 debt in relation to a scheme under subsection (5), the amount of any debt due at the relevant time from the employer under section 75 of the Pensions Act 1995 (c. 26) is to be disregarded.
(7) In this section “the relevant time” has the same meaning as in section 43.
(1) For the purposes of section 43 (financial support directions), “financial support” for a scheme means one or more of the arrangements falling within subsection (2) the details of which are approved in a notice issued by the Regulator.
(2) The arrangements falling within this subsection are—
(a) an arrangement whereby, at any time when the employer is a member of a group of companies, all the members of the group are jointly and severally liable for the whole or part of the employer’s pension liabilities in relation to the scheme;
(b) an arrangement whereby, at any time when the employer is a member of a group of companies, a company (within the meaning of section 1159 of the Companies Act 2006) which meets prescribed requirements and is the holding company of the group is liable for the whole or part of the employer’s pension liabilities in relation to the scheme;
(c) an arrangement which meets prescribed requirements and whereby additional financial resources are provided to the scheme;
(d) such other arrangements as may be prescribed.
(3) The Regulator may not issue a notice under subsection (1) approving the details of one or more arrangements falling within subsection (2) unless it is satisfied that the arrangement is, or the arrangements are, reasonable in the circumstances.
(4) In subsection (2), “the employer’s pension liabilities” in relation to a scheme means—
(a) the liabilities for any amounts payable by or on behalf of the employer towards the scheme (whether on his own account or otherwise) in accordance with a schedule of contributions under section 227, and
(b) the liabilities for any debt which is or may become due to the trustees or managers of the scheme from the employer whether by virtue of section 75 of the Pensions Act 1995 (deficiencies in the scheme assets) or otherwise.
46 Financial support directions: clearance statements
(1) An application may be made to the Regulator under this section for the issue of a clearance statement within paragraph (a), (b) or (c) of subsection (2) in relation to circumstances described in the application and relating to an occupational pension scheme.
(2) A clearance statement is a statement, made by the Regulator, that in its opinion in the circumstances described in the application—
(a) the employer in relation to the scheme would not be a service company for the purposes of section 43,
(b) the employer in relation to the scheme would not be insufficiently resourced for the purposes of that section, or
(c) it would not be reasonable to impose the requirements of a financial support direction, in relation to the scheme, on the applicant.
(3) Where an application is made under this section, the Regulator—
(a) may request further information from the applicant;
(b) may invite the applicant to amend the application to modify the circumstances described.
(4) Where an application is made under this section, the Regulator must as soon as reasonably practicable—
(a) determine whether to issue the clearance statement, and
(b) where it determines to do so, issue the statement.
(5) A clearance statement issued under this section binds the Regulator in relation to the exercise of the power to issue a financial support direction under section 43 in relation to the scheme to the applicant unless—
(a) the circumstances in relation to which the exercise of the power under that section arises are not the same as the circumstances described in the application, and
(b) the difference in those circumstances is material to the exercise of the power.
47 Contribution notices where non-compliance with financial support direction
(1) This section applies where there is non-compliance with a financial support direction issued in relation to a scheme under section 43.
(2) The Regulator may issue a notice to any one or more of the persons to whom the direction was issued stating that the person is under a liability to pay to the trustees or managers of the scheme the sum specified in the notice (a “contribution notice”).
(3) The Regulator may issue a contribution notice to a person only if the Regulator is of the opinion that it is reasonable to impose liability on the person to pay the sum specified in the notice.
(4) The Regulator, when deciding for the purposes of subsection (3) whether it is reasonable to impose liability on a particular person to pay the sum specified in the notice, must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters—
(a) whether the person has taken reasonable steps to secure compliance with the financial support direction,
(b) the relationship which the person has or has had with the employer (including, where the employer is a company within the meaning of subsection (11) of section 435 of the Insolvency Act 1986 (c. 45), whether the person has or has had control of the employer within the meaning of subsection (10) of that section),
(c) in the case of a person to whom the financial support direction was issued as a person falling within section 43(6)(b) or (c), the value of any benefits received directly or indirectly by that person from the employer,
(d) the relationship which the person has or has had with the parties to any arrangements put in place in accordance with the direction (including, where any of those parties is a company within the meaning of subsection (11) of section 435 of the Insolvency Act 1986, whether the person has or has had control of that company within the meaning of subsection (10) of that section),
(e) any connection or involvement which the person has or has had with the scheme,
(f) the financial circumstances of the person, and
(g) such other matters as may be prescribed.
(5) A contribution notice may not be issued under this section in respect of non-compliance with a financial support direction in relation to a scheme where the Board of the Pension Protection Fund has assumed responsibility for the scheme in accordance with Chapter 3 of Part 2 (pension protection).
48 The sum specified in a section 47 contribution notice
(1) The sum specified by the Regulator in a contribution notice under section 47 may be either the whole or a specified part of the shortfall sum in relation to the scheme.
(2) The shortfall sum in relation to a scheme is—
(a) in a case where, at the time of non-compliance, a debt was due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (c. 26) (“the 1995 Act”) (deficiencies in the scheme assets), the amount which the Regulator estimates to be the amount of that debt at that time, and
(b) in a case where, at the time of non-compliance, no such debt was due, the amount which the Regulator estimates to be the amount of the debt under section 75 of the 1995 Act which would become due if—
(i) subsection (2) of that section applied, and
(ii) the time designated by the trustees or managers of the scheme for the purposes of that subsection were the time of non-compliance.
(3) For the purposes of this section “the time of non-compliance” means—
(a) in the case of non-compliance with paragraph (a) of subsection (3) of section 43 (financial support directions), the time immediately after the expiry of the period specified in the financial support direction for putting in place the financial support,
(b) in the case of non-compliance with paragraph (b) of that subsection, the time when financial support for the scheme ceased to be in place,
(c) in the case of non-compliance with paragraph (c) of that subsection, the time when the prescribed event occurred in relation to which there was the failure to notify the Regulator, or
(d) where more than one of paragraphs (a) to (c) above apply, whichever of the times specified in the applicable paragraphs the Regulator determines.
49 Content and effect of a section 47 contribution notice
(1) This section applies where a contribution notice is issued to a person under section 47.
(2) The contribution notice must—
(a) contain a statement of the matters which it is asserted constitute the non-compliance with the financial support direction in respect of which the notice is issued, and
(b) specify the sum which the person is stated to be under a liability to pay.
(3) The sum specified in the notice is to be treated as a debt due from the person to the trustees or managers of the scheme.
(4) The Regulator may, on behalf of the trustees or managers of the scheme, exercise such powers as the trustees or managers have to recover the debt.
(5) But during any assessment period (within the meaning of section 132) in relation to the scheme, the rights and powers of the trustees or managers of the scheme in relation to any debt due to them by virtue of a contribution notice, are exercisable by the Board of the Pension Protection Fund to the exclusion of the trustees or managers and the Regulator.
(6) Where, by virtue of subsection (5), any amount is paid to the Board in respect of a debt due by virtue of a contribution notice, the Board must pay the amount to the trustees or managers of the scheme.
(7) The contribution notice must identify any other persons to whom contribution notices have been or are issued in respect of the non-compliance in question and the sums specified in each of those notices.
(8) Where the contribution notice so specifies, the person to whom the notice is issued (“P”) is to be treated as jointly and severally liable for the debt with any persons specified in the notice who are persons to whom corresponding contribution notices are issued.
(9) For the purposes of subsection (8), a corresponding contribution notice is a notice which—
(a) is issued in respect of the same non-compliance with the financial support direction as the non-compliance in respect of which P’s contribution notice is issued,
(b) specifies the same sum as is specified in P’s contribution notice, and
(c) specifies that the person to whom the contribution notice is issued is jointly and severally liable with P, or with P and other persons, for the debt in respect of that sum.
(10) A debt due by virtue of a contribution notice is not to be taken into account for the purposes of section 75(2) and (4) of the Pensions Act 1995 (c. 26) (deficiencies in the scheme assets) when ascertaining the amount or value of the assets or liabilities of a scheme.
50 Section 47 contribution notice: relationship with employer debt
(1) This section applies where a contribution notice is issued to a person (“P”) under section 47 and condition A or B is met.
(2) Condition A is met if, at the time at which the contribution notice is issued, there is a debt due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (“the 1995 Act”) (deficiencies in the scheme assets).
(3) Condition B is met if, after the contribution notice is issued but before the whole of the debt due by virtue of the notice is recovered, a debt becomes due from the employer to the trustees or managers of the scheme under section 75 of the 1995 Act.
(4) The Regulator may issue a direction to the trustees or managers of the scheme not to take any or any further steps to recover the debt due to them under section 75 of the 1995 Act pending the recovery of all or a specified part of the debt due to them by virtue of the contribution notice.
(5) If the trustees or managers fail to comply with a direction issued to them under subsection (4), section 10 of the 1995 Act (civil penalties) applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(6) Any sums paid—
(a) to the trustees or managers of the scheme in respect of any debt due to them by virtue of the contribution notice, or
(b) to the Board of the Pension Protection Fund in respect of any debt due to it by virtue of the contribution notice (where it has assumed responsibility for the scheme in accordance with Chapter 3 of Part 2 (pension protection)),
are to be treated as reducing the amount of the debt due to the trustees or managers or, as the case may be, to the Board under section 75 of the 1995 Act.
(7) Where a sum is paid to the trustees or managers of the scheme or, as the case may be, to the Board in respect of the debt due under section 75 of the 1995 Act, P may make an application under this subsection to the Regulator for a reduction in the amount of the sum specified in P’s contribution notice.
(8) An application under subsection (7) must be made as soon as reasonably practicable after the sum is paid to the trustees or managers or, as the case may be, to the Board in respect of the debt due under section 75 of the 1995 Act.
(9) Where such an application is made to the Regulator, the Regulator may, if it is of the opinion that it is appropriate to do so—
(a) reduce the amount of the sum specified in P’s contribution notice by an amount which it considers reasonable, and
(b) issue a revised contribution notice specifying the revised sum.
(10) For the purposes of subsection (9), the Regulator must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters—
(a) the amount paid in respect of the debt due under section 75 of the 1995 Act since the contribution notice was issued,
(b) any amounts paid in respect of the debt due by virtue of that contribution notice,
(c) whether contribution notices have been issued to other persons in respect of the same non-compliance with the financial support direction in question as the non-compliance in respect of which P’s contribution notice was issued,
(d) where such contribution notices have been issued, the sums specified in each of those notices and any amounts paid in respect of the debt due by virtue of those notices,
(e) whether P’s contribution notice specifies that P is jointly and severally liable for the debt with other persons, and
(f) such other matters as may be prescribed.
(11) Where—
(a) P’s contribution notice specifies that P is jointly and severally liable for the debt with other persons, and
(b) a revised contribution notice is issued to P under subsection (9) specifying a revised sum,
the Regulator must also issue revised contribution notices to those other persons specifying the revised sum and their joint and several liability with P for the debt in respect of that sum.
(1) In sections 43 to 50—
“group of companies” means a holding company and its subsidiaries (and references to a member of a group of companies are to be read accordingly); and
“holding company” and “subsidiary” have the meaning given by section 1159 of the Companies Act 2006.
(2) For the purposes of those sections—
(a) references to a debt due under section 75 of the Pensions Act 1995 (c. 26) include a contingent debt under that section, and
(b) references to the amount of such a debt include the amount of such a contingent debt.
(3) For the purposes of those sections—
(a) section 249 of the Insolvency Act 1986 (c. 45) (connected persons) applies as it applies for the purposes of any provision of the first Group of Parts of that Act,
(b) section 435 of that Act (associated persons) applies as it applies for the purposes of that Act, and
(c) section 229 of the Bankruptcy (Scotland) Act 2016 (associated persons) applies as it applies for the purposes of that Act.
52 Restoration orders where transactions at an undervalue
(1) This section applies in relation to an occupational pension scheme other than—
(a) a money purchase scheme, or
(b) a prescribed scheme or a scheme of a prescribed description.
(2) The Regulator may make a restoration order in respect of a transaction involving assets of the scheme if—
(a) a relevant event has occurred in relation to the employer in relation to the scheme, and
(b) the transaction is a transaction at an undervalue entered into with a person at a time which—
(i) is on or after 27th April 2004, but
(ii) is not more than two years before the occurrence of the relevant event in relation to the employer.
(3) A restoration order in respect of a transaction involving assets of a scheme is such an order as the Regulator thinks fit for restoring the position to what it would have been if the transaction had not been entered into.
(4) For the purposes of this section a relevant event occurs in relation to the employer in relation to a scheme if and when on or after the appointed day—
(a) an insolvency event occurs in relation to the employer, or
(b) the trustees or managers of the scheme make an application under subsection (1) of section 129 or receive a notice from the Board of the Pension Protection Fund under subsection (5)(a) of that section (applications and notifications prior to the Board assuming responsibility for a scheme).
(5) For the purposes of subsection (4)—
(a) the “appointed day” means the day appointed under section 126(2) (no pension protection under Chapter 3 of Part 2 if the scheme begins winding up before the day appointed by the Secretary of State),
(b) section 121 (meaning of “insolvency event”) applies for the purposes of determining if and when an insolvency event has occurred in relation to the employer, and
(c) the reference to an insolvency event in relation to the employer does not include an insolvency event which occurred in relation to him before he became the employer in relation to the scheme.
(6) For the purposes of this section and section 53, a transaction involving assets of a scheme is a transaction at an undervalue entered into with a person (“P”) if the trustees or managers of the scheme or appropriate persons in relation to the scheme—
(a) make a gift to P or otherwise enter into a transaction with P on terms that provide for no consideration to be provided towards the scheme, or
(b) enter into a transaction with P for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by or on behalf of the trustees or managers of the scheme.
(7) In subsection (6) “appropriate persons” in relation to a scheme means a person who, or several persons each of whom is a person who, at the time at which the transaction in question is entered into, is—
(a) a person of a prescribed description, and
(b) entitled to exercise powers in relation to the scheme.
(8) For the purposes of this section and section 53—
“assets” includes future assets;
“transaction” includes a gift, agreement or arrangement and references to entering into a transaction are to be construed accordingly.
(9) The provisions of this section apply without prejudice to the availability of any other remedy, even in relation to a transaction where the trustees or managers of the scheme or appropriate persons in question had no power to enter into the transaction.
(1) This section applies in relation to a restoration order under section 52 in respect of a transaction involving assets of a scheme (“the transaction”).
(2) The restoration order may in particular—
(a) require any assets of the scheme (whether money or other property) which were transferred as part of the transaction to be transferred back—
(i) to the trustees or managers of the scheme, or
(ii) where the Board of the Pension Protection Fund has assumed responsibility for the scheme, to the Board;
(b) require any property to be transferred to the trustees or managers of the scheme or, where the Board has assumed responsibility for the scheme, to the Board if it represents in any person’s hands—
(i) any of the assets of the scheme which were transferred as part of the transaction, or
(ii) property derived from any such assets so transferred;
(c) require such property as the Regulator may specify in the order, in respect of any consideration for the transaction received by the trustees or managers of the scheme, to be transferred—
(i) by the trustees or managers of the scheme, or
(ii) where the Board has assumed responsibility for the scheme, by the Board,
to such persons as the Regulator may specify in the order;
(d) require any person to pay, in respect of benefits received by him as a result of the transaction, such sums (not exceeding the value of the benefits received by him) as the Regulator may specify in the order—
(i) to the trustees or managers of the scheme, or
(ii) where the Board has assumed responsibility for the scheme, to the Board.
(3) A restoration order is of no effect to the extent that it prejudices any interest in property which was acquired in good faith and for value or any interest deriving from such an interest.
(4) Nothing in subsection (3) prevents a restoration order requiring a person to pay a sum of money if the person received a benefit as a result of the transaction otherwise than in good faith and for value.
(5) Where a person has acquired an interest in property from a person or has received a benefit as a result of the transaction and—
(a) he is one of the trustees or managers or appropriate persons who entered into the transaction as mentioned in subsection (6) of section 52, or
(b) at the time of the acquisition or receipt—
(i) he has notice of the fact that the transaction was a transaction at an undervalue,
(ii) he is a trustee or manager, or the employer, in relation to the scheme, or
(iii) he is connected with, or an associate of, any of the persons mentioned in paragraph (a) or (b)(ii),
then, unless the contrary is shown, it is to be presumed for the purposes of subsections (3) and (4) that the interest was acquired or the benefit was received otherwise than in good faith.
(6) For the purposes of this section—
(a) section 249 of the Insolvency Act 1986 (c. 45) (connected persons) applies as it applies for the purposes of any provision of the first Group of Parts of that Act,
(b) section 435 of that Act (associated persons) applies as it applies for the purposes of that Act, and
(c) section 229 of the Bankruptcy (Scotland) Act 2016 (associated persons) applies as it applies for the purposes of that Act.
(7) For the purposes of this section “property” includes—
(a) money, goods, things in action, land and every description of property wherever situated, and
(b) obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property.
(8) References in this section to where the Board has assumed responsibility for a scheme are to where the Board has assumed responsibility for the scheme in accordance with Chapter 3 of Part 2 (pension protection).
(1) This section applies where a restoration order is made under section 52 in respect of a transaction involving assets of a scheme.
(2) Where the restoration order imposes an obligation on a person to do something, the order must specify the period within which the obligation must be complied with.
(3) Where the restoration order imposes an obligation on a person (“A”) to transfer or pay a sum of money to a person specified in the order (“B”), the sum is to be treated as a debt due from A to B.
(4) Where the trustees or managers of the scheme are the persons to whom the debt is due, the Regulator may on their behalf, exercise such powers as the trustees or managers have to recover the debt.
(5) But during any assessment period (within the meaning of section 132) in relation to the scheme, the rights and powers of the trustees or managers of the scheme in relation to any debt due to them by virtue of a restoration order are exercisable by the Board of the Pension Protection Fund to the exclusion of the trustees or managers and the Regulator.
(6) Where, by virtue of subsection (5), any amount is transferred or paid to the Board in respect of a debt due by virtue of a restoration order, the Board must pay the amount to the trustees or managers of the scheme.
55 Contribution notice where failure to comply with restoration order
(1) This section applies where—
(a) a restoration order is made under section 52 in respect of a transaction involving assets of a scheme (“the transaction”), and
(b) a person fails to comply with an obligation imposed on him by the order which is not an obligation to transfer or pay a sum of money.
(2) The Regulator may issue a notice to the person stating that the person is under a liability to pay the sum specified in the notice (a “contribution notice”)—
(a) to the trustees or managers of the scheme, or
(b) where the Board of the Pension Protection Fund has assumed responsibility for the scheme in accordance with Chapter 3 of Part 2 (pension protection), to the Board.
(3) The sum specified by the Regulator in a contribution notice may be either the whole or a specified part of the shortfall sum in relation to the scheme.
(4) The shortfall sum in relation to the scheme is the amount which the Regulator estimates to be the amount of the decrease in the value of the assets of the scheme as a result of the transaction having been entered into.
56 Content and effect of a section 55 contribution notice
(1) This section applies where a contribution notice is issued to a person under section 55.
(2) The contribution notice must—
(a) contain a statement of the matters which it is asserted constitute the failure to comply with the restoration order under section 52 in respect of which the notice is issued, and
(b) specify the sum which the person is stated to be under a liability to pay.
(3) Where the contribution notice states that the person is under a liability to pay the sum specified in the notice to the trustees or managers of the scheme, the sum is to be treated as a debt due from the person to the trustees or managers of the scheme.
(4) In such a case, the Regulator may, on behalf of the trustees or managers of the scheme, exercise such powers as the trustees or managers have to recover the debt.
(5) But during any assessment period (within the meaning of section 132) in relation to the scheme, the rights and powers of the trustees or managers of the scheme in relation to any debt due to them by virtue of a contribution notice, are exercisable by the Board of the Pension Protection Fund to the exclusion of the trustees or managers and the Regulator.
(6) Where, by virtue of subsection (5), any amount is paid to the Board in respect of a debt due by virtue of a contribution notice, the Board must pay the amount to the trustees or managers of the scheme.
(7) Where the contribution notice states that the person is under a liability to pay the sum specified in the notice to the Board, the sum is to be treated as a debt due from the person to the Board.
57 Sections 38 to 56: partnerships and limited liability partnerships
(1) For the purposes of any of sections 38 to 56, regulations may modify any of the definitions mentioned in subsection (2) (as applied by any of those sections) in relation to—
(a) a partnership or a partner in a partnership;
(b) a limited liability partnership or a member of such a partnership.
(2) The definitions mentioned in subsection (1) are—
(a) section 249 of the Insolvency Act 1986 (c. 45) (connected persons),
(b) section 435 of that Act (associated persons),
(c) section 229 of the Bankruptcy (Scotland) Act 2016 (associated persons), and
(d) section 1159 of the Companies Act 2006 (meaning of “subsidiary” and “holding company” etc).
(3) Regulations may also provide that any provision of sections 38 to 51 applies with such modifications as may be prescribed in relation to—
(a) any case where a partnership is or was—
(i) the employer in relation to an occupational pension scheme, or
(ii) for the purposes of any of those sections, connected with or an associate of the employer;
(b) any case where a limited liability partnership is—
(i) the employer in relation to an occupational pension scheme, or
(ii) for the purposes of any of those sections, connected with or an associate of the employer.
(4) Regulations may also provide that any provision of sections 52 to 56 applies with such modifications as may be prescribed in relation to a partnership or a limited liability partnership.
(5) For the purposes of this section—
(a) “partnership” includes a firm or entity of a similar character formed under the law of a country or territory outside the United Kingdom, and
(b) references to a partner are to be construed accordingly.
(6) For the purposes of this section, “limited liability partnership” means—
(a) a limited liability partnership registered under the Limited Liability Partnerships Act 2000, or
(b) an entity which is of a similar character to such a limited liability partnership and which is formed under the law of a country or territory outside the United Kingdom,
and references to a member of a limited liability partnership are to be construed accordingly.
(7) This section is without prejudice to—
(a) section 307 (power to modify this Act in relation to certain categories of scheme), and
(b) section 318(4) (power to extend the meaning of “employer”).
58 Regulator’s right to apply under section 423 of Insolvency Act 1986
(1) In this section “section 423” means section 423 of the Insolvency Act 1986 (transactions defrauding creditors).
(2) The Regulator may apply for an order under section 423 in relation to a debtor if—
(a) the debtor is the employer in relation to an occupational pension scheme, and
(b) condition A or condition B is met in relation to the scheme.
(3) Condition A is that a determination made, or actuarial valuation obtained, in respect of the scheme by the Board of the Pension Protection Fund under section 143(2) indicates that the value of the assets of the scheme at the relevant time, as defined by section 143 , was less than the amount of the protected liabilities, as defined by section 131, at that time.
(4) Condition B is that an actuarial valuation, as defined by section 224(2), obtained by the trustees or managers of the scheme indicates that the statutory funding objective in section 222 is not met.
(5) In a case where the debtor—
(a) has been made bankrupt,
(b) is a body corporate which is being wound up or is in administration, or
(c) is a partnership which is being wound up or is in administration,
subsection (2) does not enable an application to be made under section 423 except with the permission of the court.
(6) An application made under this section is to be treated as made on behalf of every victim of the transaction who is—
(a) a trustee or member of the scheme, or
(b) the Board.
(7) This section does not apply where the valuation mentioned in subsection (3) or (4) is made by reference to a date that falls before the commencement of this section.
(8) Expressions which are defined by section 423 for the purposes of that section have the same meaning when used in this section.
(1) This section applies in relation to an occupational pension scheme other than—
(a) a money purchase scheme, or
(b) a prescribed scheme or a scheme of a prescribed description.
(2) A person commits an offence only if—
(a) the person does an act or engages in a course of conduct that—
(i) prevents the recovery of the whole or any part of a debt which is due from the employer in relation to the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets),
(ii) prevents such a debt becoming due,
(iii) compromises or otherwise settles such a debt, or
(iv) reduces the amount of such a debt which would otherwise become due,
(b) the person intended the act or course of conduct to have such an effect, and
(c) the person did not have a reasonable excuse for doing the act or engaging in the course of conduct.
(3) A reference in this section to an act or course of conduct includes a failure to act.
(4) This section does not apply to a person if the act done, or course of conduct engaged in, by the person is in accordance with the person's functions as an insolvency practitioner in relation to another person.
(5) For the purposes of this section a reference to a debt due under section 75 of the Pensions Act 1995 includes a contingent debt under that section.
(6) Accordingly, in the case of such a contingent debt, the reference in subsection (2)(a) to preventing a debt becoming due is to be read as including a reference to preventing the occurrence of any of the events specified in section 75(4C)(a) or (b) of the Pensions Act 1995 upon which the debt is contingent.
(7) A person guilty of an offence under subsection (2) is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland, to a fine not exceeding the statutory maximum;
(c) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine, or both.
(8) Proceedings for an offence under subsection (2) may be instituted in England and Wales only—
(a) by the Regulator or the Secretary of State, or
(b) by or with the consent of the Director of Public Prosecutions.
(9) For the purposes of this section and sections 58B to 58D “insolvency practitioner”, in relation to a person, means—
(a) a person acting as an insolvency practitioner, in relation to that person, in accordance with section 388 of the Insolvency Act 1986, or
(b) an insolvency practitioner within the meaning of section 121(9)(b) (persons of a prescribed description).
58B Offence of conduct risking accrued scheme benefits
(1) This section applies in relation to an occupational pension scheme other than—
(a) a money purchase scheme, or
(b) a prescribed scheme or a scheme of a prescribed description.
(2) A person commits an offence only if—
(a) the person does an act or engages in a course of conduct that detrimentally affects in a material way the likelihood of accrued scheme benefits being received (whether the benefits are to be received as benefits under the scheme or otherwise),
(b) the person knew or ought to have known that the act or course of conduct would have that effect, and
(c) the person did not have a reasonable excuse for doing the act or engaging in the course of conduct.
(3) A reference in this section to an act or a course of conduct includes a failure to act.
(4) A reference in this section to accrued scheme benefits being received is a reference to benefits the rights to which have accrued by the relevant time being received by, or in respect of, the persons who were members of the scheme before that time.
(5) In this section “the relevant time” means—
(a) in the case of an act, the time of the act,
(b) in the case of a failure to act—
(i) the time when the failure occurred, or
(ii) where the failure continued for a period of time, the end of that period, or
(c) in the case of a course of conduct, the time when the course of conduct ended.
(6) A reference in this section to rights which have accrued is to be read in accordance with section 67A(6) and (7) of the Pensions Act 1995 (reading any reference in those subsections to a subsisting right as a reference to a right which has accrued).
(7) For the purposes of this section the benefits that may be received under the following provisions of this Act are to be disregarded—
(a) Chapter 3 of Part 2 (the Board of the Pension Protection Fund: pension protection), and
(b) section 286 (the financial assistance scheme for members of certain pension schemes).
(8) This section does not apply to a person if the act done, or course of conduct engaged in, by the person is in accordance with the person's functions as an insolvency practitioner in relation to another person (see section 58A(9)).
(9) A person guilty of an offence under subsection (2) is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland, to a fine not exceeding the statutory maximum;
(c) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine, or both.
(10) Proceedings for an offence under subsection (2) may be instituted in England and Wales only—
(a) by the Regulator or the Secretary of State, or
(b) by or with the consent of the Director of Public Prosecutions.
58C Financial penalty for avoidance of employer debt
(1) This section applies in relation to an occupational pension scheme other than—
(a) a money purchase scheme, or
(b) a prescribed scheme or a scheme of a prescribed description.
(2) Section 88A (financial penalties) applies to a person who was party to an act or deliberate failure to act the main purpose or one of the main purposes of which was—
(a) to prevent the recovery of the whole or any part of a debt which is due from the employer in relation to the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets),
(b) to prevent such a debt becoming due,
(c) to compromise or otherwise settle such a debt, or
(d) to reduce the amount of such a debt which would otherwise become due,
if it was not reasonable for the person to act or fail to act in the way that the person did.
(3) This section does not apply where the Regulator is of the opinion that the person, in being a party to the act or failure, was acting in accordance with the person's functions as an insolvency practitioner in relation to another person (see section 58A(9)).
(4) For the purposes of this section a reference to a debt due under section 75 of the Pensions Act 1995 includes a contingent debt under that section.
(5) Accordingly, in the case of such a contingent debt, the reference in subsection (2) to preventing a debt becoming due is to be read as including a reference to preventing the occurrence of any of the events specified in section 75(4C)(a) or (b) of the Pensions Act 1995 upon which the debt is contingent.
(6) For the purposes of this section the parties to an act or deliberate failure to act include those persons who knowingly assist in the act or failure.
(7) If the Regulator is of the opinion that—
(a) a person was party to a series of acts or deliberate failures to act, and
(b) the requirements of subsection (2) are met in relation to the series,
the series of acts or failures to act is to be regarded as an act or failure to act in relation to which the requirements of subsection (2) are met.
58D Financial penalty for conduct risking accrued scheme benefits
(1) This section applies in relation to an occupational pension scheme other than—
(a) a money purchase scheme, or
(b) a prescribed scheme or a scheme of a prescribed description.
(2) Section 88A (financial penalties) applies to a person who was party to an act or deliberate failure to act that detrimentally affected in a material way the likelihood of accrued scheme benefits being received (whether the benefits are to be received as benefits under the scheme or otherwise), if—
(a) the person knew or ought to have known that the act or failure to act would have that effect, and
(b) it was not reasonable for the person to act or fail to act in the way that the person did.
(3) This section does not apply where the Regulator is of the opinion that the person, in being a party to the act or failure, was acting in accordance with the person's functions as an insolvency practitioner in relation to another person (see section 58A(9)).
(4) In this section a reference to accrued scheme benefits being received is a reference to benefits the rights to which have accrued by the relevant time being received by, or in respect of, the persons who were members of the scheme before that time.
(5) In this section “the relevant time” means—
(a) in the case of an act, the time of the act;
(b) in the case of a failure to act—
(i) the time when the failure to act occurred, or
(ii) where the failure continued for a period of time, the end of that period;
and, in the case of acts or failures to act forming part of a series, any reference in this subsection to an act or failure to act is a reference to the last of the acts or failures in that series.
(6) A reference in this section to rights which have accrued is to be read in accordance with section 67A(6) and (7) of the Pensions Act 1995 (reading any reference in those subsections to a subsisting right as a reference to a right which has accrued).
(7) In determining for the purposes of this section whether an act or failure to act has detrimentally affected in a material way the likelihood of accrued scheme benefits being received, the following provisions of this Act are to be disregarded—
(a) Chapter 3 of Part 2 (the Board of the Pension Protection Fund: pension protection), and
(b) section 286 (the financial assistance scheme for members of certain pension schemes).
(8) For the purposes of this section the parties to an act or deliberate failure to act include those persons who knowingly assist in the act or failure.
(9) If the Regulator is of the opinion that—
(a) a person was party to a series of acts or deliberate failures to act, and
(b) the requirements of subsection (2) are met in relation to the series,
the series of acts or failures to act is to be regarded as an act or failure to act in relation to which the requirements of subsection (2) are met.
59 Register of occupational and personal pension schemes
(1) The Regulator must compile and maintain a register of occupational pension schemes and personal pension schemes which are, or have been, registrable schemes (referred to in this Act as “the register”).
(2) In this section and sections 62 to 65 “registrable scheme” means an occupational pension scheme, or a personal pension scheme, of a prescribed description.
(3) In respect of each registrable scheme, the Regulator must record in the register—
(a) the registrable information most recently provided to it in respect of the scheme, and
(b) if the Regulator has received—
(i) a notice under section 62(5) (scheme which is wound up or ceases to be registrable),
(ii) a copy of a notice under section 160 (transfer notice), or
(iii) any notice, or copy of a notice, under any provision in force in Northern Ireland corresponding to a provision mentioned in sub-paragraph (i) or (ii),
that fact.
(4) In respect of each scheme which has been a registrable scheme, but
(a) has been, or is treated as having been, wound up, or
(b) has ceased to be a registrable scheme,
the Regulator must maintain in the register the registrable information last provided to it in respect of the scheme.
(5) Information recorded in the register must be so recorded in such manner as the Regulator considers appropriate.
(6) In particular, the register may consist of more than one part.
(7) In this section references to “registrable information”, in relation to a scheme to which any provision in force in Northern Ireland corresponding to section 60(2) (“the corresponding Northern Ireland provision”) applies, are to information of any description within the corresponding Northern Ireland provision.
(1) For the purposes of sections 59 to 65 “registrable information”, in relation to an occupational or personal pension scheme, means information within subsection (2).
(2) That information is—
(a) the name of the scheme;
(b) the address of the scheme;
(c) the full names and addresses of each of the trustees or managers of the scheme;
(ca) in the case of an occupational pension scheme established under a trust, the full name and address of any chair of the trustees;
(d) the status of the scheme with respect to the following matters—
(i) whether new members may be admitted to the scheme;
(ii) whether further benefits may accrue to, or in respect of, members under the scheme;
(iii) whether further contributions may be paid towards the scheme;
(iv) whether any members of the scheme are active members;
(e) the categories of benefits under the scheme;
(f) in the case of an occupational pension scheme—
(i) the name and address of each relevant employer, and
(ii) any other name by which any relevant employer has been known at any time on or after the relevant date;
(g) in the case of an occupational pension scheme, the number of members of the scheme on the later of—
(i) the last day of the scheme year which ended most recently, and
(ii) the day on which the scheme became a registrable scheme; and
(h) such other information as may be prescribed.
(3) Regulations may make provision about the interpretation of any of the descriptions in subsection (2).
(4) For the purposes of subsection (2)(f)—
“relevant employer” means any person—
who is, or
who, at any time on or after 6th April 1975, has been,
the employer in relation to the scheme;
“relevant date”, in relation to a relevant employer, means—
6th April 1975, or
if later, the date on which the relevant employer first became the employer in relation to the scheme.
61 The register: inspection, provision of information and reports etc
(1) Regulations may provide—
(a) for—
(i) information recorded in the register,
(ii) extracts from the register, or
(iii) copies of the register or of extracts from it,
to be provided to prescribed persons in prescribed circumstances, and
(b) for the inspection of—
(i) the register,
(ii) extracts from the register, or
(iii) copies of the register or of extracts from it,
by prescribed persons in prescribed circumstances.
(2) Regulations under subsection (1) may, in particular—
(a) confer functions on—
(i) the Secretary of State, or
(ii) a person authorised by him for the purposes of the regulations;
(b) make provision with respect to the disclosure of information obtained by virtue of the regulations.
(3) Regulations which contain any provision made by virtue of subsection (2)(b) may, in particular, modify section 82 (restricted information).
(4) The Secretary of State may direct the Regulator to submit to him statistical and other reports concerning—
(a) information recorded in the register, and
(b) the operation of the Regulator’s functions in relation to the register.
(5) A direction under subsection (4) may specify—
(a) the form in which, and
(b) the times at which,
reports required by the direction are to be submitted.
(6) The Secretary of State may publish any report submitted to him by virtue of a direction under subsection (4) in such manner as he considers appropriate.
(1) Subsection (2) applies where—
(a) a registrable scheme is established, or
(b) an occupational or personal pension scheme otherwise becomes a registrable scheme.
(2) The trustees or managers of the scheme must, before the end of the initial notification period—
(a) notify the Regulator that the scheme is a registrable scheme, and
(b) provide to the Regulator all the registrable information with respect to the scheme.
(3) In subsection (2), the “initial notification period” means the period of three months beginning with—
(a) the date on which the scheme is established, or
(b) if later, the date on which it becomes a registrable scheme.
(4) Where there is a change in any registrable information in respect of a registrable scheme, the trustees or managers of the scheme must as soon as reasonably practicable, notify the Regulator—
(a) of that fact, and
(b) of the new registrable information.
(5) Where a registrable scheme—
(a) ceases to be a registrable scheme, or
(b) is wound up (otherwise than under section 161(2) (effect of Board assuming responsibility for scheme)),
the trustees or managers of the scheme must as soon as reasonably practicable, notify the Regulator of that fact.
(6) If subsection (2), (4) or (5) is not complied with, section 10 of the Pensions Act 1995 (c. 26) (civil penalties) applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.